PROROGATION PART TWO

When we last left you our readers, you were breathlessly following the legal maneuverings of the UK courts dealing with HRH's order Prorogating Parliament until October 14. The High Court of England declined to intervene, ruling the issue political and non-justiciable. There were, however, two cases proceeding simultaneously, and the second case was in Scotland. 

The High Court of Westminster's ruling was hardly unexpected. The lower court in Scotland, The Lord Ordinary,  dismissed the original petition. He found that the PM’s advice to HM the Queen on prorogation was, as a matter of high policy and political judgment and thus  non-justiciable. 

Rare is the Scottish barrister who takes "no" for an answer.  A petition for judicial review was raised by 79 petitioners, 78 of whom are parliamentarians at Westminster, on 31 July 2019, seeking inter alia that it would be unlawful for the UK Government to advise HM the Queen to prorogue the UK Parliament with a view to preventing sufficient time for proper consideration of the UK’s withdrawal from the European Union (Brexit).

Three Judges heard the appeal, just like at the 3rd DCA, but the court is a bit older (by two hundred years or so). 

The Chief Judge, The Lord President, Lord Carloway, decided that although advice to HRH the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution. 

Lord Brodie considered that whereas when the petition was raised the question was unlikely to have been justiciable, the particular prorogation that had occurred, as a tactic to frustrate Parliament, could legitimately be established as unlawful. This was an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities. It was to be inferred that the principal reasons for the prorogation were to prevent or impede Parliament holding the executive to account and legislating with regard to Brexit, and to allow the executive to pursue a policy of a no deal Brexit without further Parliamentary interference.

Lord Drummond Young  (the liberal of the three) determined that the courts have jurisdiction to decide whether any power, under the prerogative or otherwise, has been legally exercised. It was incumbent on the UK Government to show a valid reason for the prorogation, having regard to the fundamental constitutional importance of parliamentary scrutiny of executive action.  The circumstances, particularly the length of the prorogation, showed that the purpose was to prevent such scrutiny. The only inference that could be drawn was that the UK Government and the Prime Minister wished to restrict Parliament from stopping the PM’s hard Brexit plans.

The court held the Prorogation order null and void. According to Scottish court, Parliament was still in session.

COMING NEXT PROROGATION PART THREE: THE SUPREME COURT OF ENGLAND RULES 

PROROGATION PART ONE

Oh to be in England now that Parliament is in session. 
Is Parliament in session? 
Good question. You've come to the right place. 

Prorogation is a Constitutional Act in the United Kingdom used to end one session of Parliament and mark the time period before a new session of Parliament convenes. The order for Prorogation is ordered by HRH Queen Elizabeth, upon request of the Prime Minister (actually the Privy Council makes the request to the Queen pursuant to the Parliament Act of 1797 and the Civil Contingencies Act of 2004, but there are judges reading this post and we cannot make it too complicated). See The Queen on application of Gina Miller And Boris Johnson, The Prime Minsiter, High Court of Justice, Queen's Division, Case No: CO/3385/2019, ("A decision to prorogue Parliament is made by the Sovereign formally on the advice of the Privy Council but in reality on the advice of the Prime Minister.")

Prorogation  has been for many decades a routine order as a session of Parliament ended.  
Enter Brexit. 

The UK is disastrously withdrawing from the European Union. Sort of like North Dakota  withdrawing from the Union, but we are not sure we would notice it much. 
Britain's exit (Br-exit) can be soft and negotiated, or hard- like Trump ignoring an act of congress. 

England's Prime Minister Boris Johnson, who is hilariously mocked by Larry the Cat, the official Mouser of the PM's residence at 10 Downing Street, on twitter,  has stated that he will withdraw the UK from the EU by Halloween or die trying. 
Right now Boris's  life span is looking less and less. 

In order to effectuate his hard Brexit, Boris asked the Queen for a Prorogation order well beyond the normal time, effectively shutting down Parliment until two weeks before Brexit. 

The good people of England were outraged and they sued in  England and Scotland (it's a long story why it was in both courts, just take a wee bit of Scotch or have a pint of Guiness and keep reading.) 

The English Court -the High Court of Justice in Westminster London (just a bit more distinguished than our Hialeah Branch Court) ruled the issue "non-justiciable". English law, which we are an acknowledged expert in, does not easily  provide for judicial review of the executive. Courts in England do not wade into politics and they rarely review acts of Parliament. 

“The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions.”   A v Secretary of State for the Home Department [2005] 1 AC 68, Lord Bingham. 

In Gibson v Lord Advocate 1975 SC 136, 144 Lord Keith said:
“The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State.” 

Based on stare decisis, the High Court in London held "In our view, the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts." 

But the case did not end there. The High Court in Scotland had a different view of the case. 

COMING NEXT PROROGATION THE DECISION OF THE SCOTTISH COURT